Case of the Day: Hughes v. Ashton

The case of the day Hughes v. Ashton (Cal. Ct. App. 2011), a case on service of process in Chile, is clear and well-reasoned. Three cheers for Judge Reardon!

Hughes and Ashton had a dispute over real property in California that they had jointly owned. Hughes wrote a letter concerning the dispute to Ashton at Ashton’s address in Chile, and she received a response from Ashton’s lawyer, Diaz. When the parties could not settle the dispute, Hughes sued. She served process by mailing the summons and complaint to Ashton’s address in Chile via registered mail, and she obtained a signed mailing receipt. When Ashton did not appear, Hughes sought and obtained a default judgment. Years later, Ashton sought to set aside the judgment.

The trial court found that Ashton had actually received the papers in Chile and signed the receipt. Ashton argued nevertheless that service by registered mail was impermissible. The Court of Appeals rejected the argument. First, it noted that service by mail was proper under the law of the forum, in particular sections 413.10 and 415.40 of the California Code of Civil Procedure.

Chile is a party to the Inter-American Convention but not the Hague Service Convention. Unlike the Hague Service Convention, the Inter-American Convention is neither mandatory nor exclusive. Therefore, whether the service complied with the Convention was immaterial. The court recognized that considerations of comity could lead to the conclusion that the plaintiff should use a method of service permitted by the law of the place where the service was accomplished, but the court held that in the circumstances of this case, where the defendant did not seek to quash the service at the time and waited for years after the judgment to seek relief, comity was not relevant.

The court did, however, note that the validity of the service under California law could not guarantee that the Chilean courts would enforce the judgment:

While it may be that Chile would not recognize the California judgment because Ashton purportedly was not served in a manner authorized under Chilean law, that does not mean that service was improper under California law and that the California judgment is void in this state.

I think the judge got everything about this case right. He recognized that in the first instance, the validity of the service depends on the law of the forum; he recognized that because the Inter-American Convention was non-exclusive, Chilean law did not apply, except as a matter of comity, which the court judge declined to grant; and he explained why, despite the outcome of the case, American plaintiffs would do well to bear the law of the state where the defendant is served in mind—if the ultimate goal is a judgment enforceable in a foreign state, the willingness of an American court to grant a judgment in the plaintiff’s favor is not enough.

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. He is the author of International Judicial Assistance (MCLE 2d ed. 2016), a nuts-and-bolts guide to international judicial assistance issues, and of the chapter on service of process in the ABA's forthcoming treatise on International Aspects of US Litigation, and he is the publisher of Letters Blogatory, the Web's first blog devoted to international judicial assistance, which the ABA recognized as one of the best 100 legal blogs in 2012, 2014, and 2015.

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